EXHIBIT 3.1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
_________________________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "HOLLYWOOD PARK, INC.", FILED IN THIS OFFICE ON THE NINTH DAY OF JUNE, A.D.
1998, AT 9 O'CLOCK A.M.
/s/ Edward J. Freel
---------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9562542
DATE: 02-08-99
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
HOLLYWOOD PARK, INC.
-------------------
a Delaware corporation
Hollywood Park, Inc., a corporation organized and existing under and
by virtue of the Laws of the State of Delaware (the "Corporation"), hereby
certifies as follows:
1. That ARTICLE XII of the Certificate of Incorporation is deleted in its
-----------
entirety.
2. That ARTICLE XIII is renumbered as ARTICLE XII.
------------ -----------
3. That ARTICLE XIV of the Certificate of Incorporation is renumbered as
-----------
ARTICLE XIII and amended to read in full as follows:
- ------------
"ARTICLE XIII
-------------
A. Definitions. For purposes of this Article XIII, the following terms
-----------
shall have the meanings specified below:
1. "Affiliate" shall have the meaning ascribed to such term in Rule
12b-2 promulgated by the Securities and Exchange Commission ("SEC") under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
2. "Affiliated Companies" shall mean those companies directly or
indirectly affiliated or under common Ownership or Control with the Corporation,
including, without limitation, subsidiaries, holding companies and intermediary
companies (as those and similar terms are defined in the Gaming Laws of the
applicable Gaming Jurisdictions) that are registered or licensed under
applicable Gaming Laws.
3. "Gaming" or "Gaming Activities" shall mean the conduct of gaming
and gambling activities, or the use of gaming devices, equipment and supplies in
the operation of a casino, card club or other enterprise, including, without
limitation, slot machines, gaming tables, cards, dice, gaming chips, player
tracking systems, cashless wagering systems and related and associated equipment
and supplies.
4. "Gaming Authorities" shall mean all international, foreign,
federal, state and local regulatory and licensing bodies and agencies with
authority over Gaming within any Gaming Jurisdiction.
5. "Gaming Jurisdictions" shall mean all jurisdictions, domestic and
foreign, and their political subdivisions, in which Gaming Activities are
lawfully conducted.
6. "Gaming Laws" shall mean all laws, statutes and ordinances
pursuant to which any Gaming Authority possesses regulatory and licensing
authority over Gaming within any Gaming Jurisdiction, and all rules and
regulations promulgated by such Gaming Authority thereunder.
-2-
7. "Gaming Licenses" shall mean all licenses, permits, approvals,
authorizations, registrations, findings of suitability, franchises and
entitlements issued by a Gaming Authority necessary for or relating to the
conduct of Gaming Activities.
8. "Ownership or Control" (and derivatives thereof) shall mean (i)
ownership of record, (ii) "beneficial ownership" as defined in Rule 13d-3 or
Rule 16a-1(a)(2) promulgated by the SEC under the Exchange Act, (iii) the power
to direct and manage, by agreement, contract, agency or other manner, the voting
or management rights or disposition of securities of the Corporation, and/or
(iv) definitions of ownership or control under applicable Gaming Laws.
9. "Person" shall mean an individual, partnership, corporation,
limited liability company, trust or any other entity.
10. "Redemption Date" shall mean the date by which the securities
Owned or Controlled by an Unsuitable Person are to be redeemed by the
Corporation.
11. "Redemption Notice" shall mean that notice of redemption served
by the Corporation on an Unsuitable Person if a Gaming Authority requires the
Corporation, or the Corporation deems it necessary or advisable, to redeem such
Unsuitable Person's securities. Each Redemption Notice shall set forth (i) the
Redemption Date; (ii) the number of shares of securities to be redeemed; (iii)
the Redemption Price and the manner of payment therefor; (iv) the place where
certificates for such shares shall be surrendered for payment; and (v) any other
requirements of surrender of the certificates, including how they are to be
endorsed, if at all.
12. "Redemption Price" shall mean the per share price for the
redemption of any securities to be redeemed pursuant to this Article, which
shall be that price (if any) required to be paid by the Gaming Authority making
the finding of unsuitability, or if such Gaming Authority does not require a
certain price per share to be paid, that sum deemed reasonable by the
Corporation (which may include, in the Corporation's discretion, the original
purchase price per share of the securities); provided, however, the Redemption
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Price, unless the Gaming Authority requires otherwise, shall in no event exceed
(i) the closing sales price of the securities on the national securities
exchange on which such shares are then listed on the date the notice of
redemption is delivered to the Unsuitable Person by the Corporation, or (ii) if
such shares are not then listed for trading on any national securities exchange,
then the closing sales price of such shares as quoted in the NASDAQ National
Market System, or (iii) if the shares are not then so quoted, then the mean
between the representative bid and the ask price as quoted by NASDAQ or another
generally recognized reporting system. The Redemption Price may be paid in cash,
by promissory note, or both, as required by the applicable Gaming Authority and,
if not so required, as the Corporation elects.
13. "Unsuitable Person" shall mean a Person who Owns or Controls any
securities of the Corporation or any securities of or interest in any Affiliated
Company (i) that is determined by a Gaming Authority to be unsuitable to Own or
Control such securities or unsuitable to be connected with a Person engaged in
Gaming Activities in that Gaming Jurisdiction, or (ii) who causes the
Corporation or any Affiliated Company to lose or to be
-3-
threatened with the loss of, or who, in the sole discretion of the Board of
Directors of the Corporation, is deemed likely to jeopardize the Corporation's
right to the use of or entitlement to, any Gaming License.
B. Compliance with Gaming Laws. The Corporation, all Persons Owning
---------------------------
or Controlling securities of the Corporation and any Affiliated Companies, and
each director and officer of the Corporation and any Affiliated Companies shall
comply with all requirements of the Gaming Laws in each Gaming Jurisdiction in
which the Corporation or any Affiliated Companies conduct Gaming Activities. All
securities of the Corporation shall be held subject to the requirements of such
Gaming Laws, including any requirement that (i) the holder file applications for
Gaming Licenses with, or provide information to, applicable Gaming Authorities,
or (ii) that any transfer of such securities may be subject to prior approval by
Gaming Authorities, and any transfer of securities of the Corporation in
violation of any such approval requirement shall not be permitted and the
purported transfer shall be void ab initio.
-- ------
C. Finding of Unsuitability.
------------------------
1. The securities of the Corporation Owned or Controlled by an
Unsuitable Person or an Affiliate of an Unsuitable Person shall be redeemable by
the Corporation, out of funds legally available therefor, by appropriate action
of the Board of Directors, to the extent required by the Gaming Authority making
the determination of unsuitability or to the extent deemed necessary or
advisable by the Corporation. If a Gaming Authority requires the Corporation, or
the Corporation deems it necessary or advisable, to redeem such securities, the
Corporation shall serve a Redemption Notice on the Unsuitable Person or its
Affiliate and shall purchase the securities on the Redemption Date and for the
Redemption Price set forth in the Redemption Notice. From and after the
Redemption Date, such securities shall no longer be deemed to be outstanding and
all rights of the Unsuitable Person or any Affiliate of the Unsuitable Person
therein, other than the right to receive the Redemption Price, shall cease. The
Unsuitable Person shall surrender the certificates for any securities to be
redeemed in accordance with the requirements of the Redemption Notice.
Notwithstanding the foregoing, so long as the Corporation and Hollywood Park
Operating Company are a paired stock real estate investment trust and operating
company, the Corporation may, in its sole discretion, convert any securities
that are redeemable pursuant to this Section (C)(1) into shares of Excess Stock
effective upon written notice to the Unsuitable Person or its Affiliate, and
such shares of Excess Stock shall be transferred to a Trust for sale to a
Permitted Transferee (as such terms are defined in Article IV) in accordance
with Sections (D)(4) through (9) of Article IV.
2. Commencing on the date that a Gaming Authority serves notice
of a determination of unsuitability or the loss or threatened loss of a Gaming
License upon the Corporation, and until the securities Owned or Controlled by
the Unsuitable Person or the Affiliate of an Unsuitable Person are Owned or
Controlled by Persons found by such Gaming Authority to be suitable to own them,
it shall be unlawful for the Unsuitable Person or any Affiliate of an Unsuitable
Person (i) to receive any dividend, payment, distribution or interest with
regard to the securities; (ii) to exercise, directly or indirectly or through
any proxy, trustee, or nominee, any voting or other right conferred by such
securities, and such securities shall not for any purposes be included in the
securities of the Corporation entitled
-4-
to vote, or (iii) to receive any remuneration in any form from the Corporation
or an Affiliated Company for services rendered or otherwise.
D. Issuance and Transfer of Securities. The Corporation shall not
-----------------------------------
issue or transfer any securities or any interest, claim or charge thereon or
thereto except in accordance with applicable Gaming Laws. The issuance or
transfer of any securities in violation thereof shall be ineffective until (i)
the Corporation shall cease to be subject to the jurisdiction of the applicable
Gaming Authorities, or (ii) the applicable Gaming Authorities shall, by
affirmative action, validate said issuance or transfer or waive any defect in
said issuance or transfer.
E. Indenture Restrictions. The Corporation shall cause to be placed
----------------------
in every indenture or other operative document relating to publicly traded
securities (other than capital stock) of the Corporation a provision requiring
that any Person or Affiliate of a Person who holds the indebtedness represented
by that indenture and is found to be unsuitable to hold such interest shall have
the interest redeemed or shall dispose of the interest in the Corporation in the
manner set forth in the indenture or other document.
F. Notices. All notices given by the Corporation pursuant to this
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Article, including Redemption Notices, shall be in writing and shall be deemed
given when delivered by personal service or telegram, facsimile, overnight
courier or first class mail, postage prepaid, to the Person's address as shown
on the Corporation's books and records.
G. Indemnification. Any Unsuitable Person and any Affiliate of an
----------------
Unsuitable Person shall indemnify the Corporation and its Affiliated Companies
for any and all costs, including attorneys' fees, incurred by the Corporation
and its Affiliated Companies as a result of such Unsuitable Person's or
Affiliate's continuing Ownership or Control or failure to promptly divest itself
of any securities in the Corporation.
H. Fiduciary Obligations; Contractual Arrangements; Etc. Nothing
----------------------------------------------------
contained in this Article XIII shall be construed (i) to relieve any Unsuitable
Person (or Affiliate of such Person) from any fiduciary obligation imposed by
law, (ii) to prohibit or affect any contractual arrangement which the
Corporation may make from time to time with any holder of securities of the
Corporation to purchase all or any part of shares of capital stock or other
securities held by them, or (iii) to be in derogation of any action, past or
future, which has been or may be taken by the Board of Directors or any holder
of securities with respect to the subject matter of this Article XIII.
I. Injunctive Relief. The Corporation is entitled to injunctive
------------------
relief in any court of competent jurisdiction to enforce the provisions of this
Article and each holder of the securities of the Corporation shall be deemed to
have acknowledged, by acquiring the securities of the Corporation, that the
failure to comply with this Article will expose the Corporation to irreparable
injury for which there is no adequate remedy at law and that the Corporation is
entitled to injunctive relief to enforce the provisions of this Article.
J. Legend. The restrictions set forth in this Article XIII shall be
------
noted conspicuously on any certificate representing securities of the
Corporation in accordance
-5-
with the requirements of the Delaware General Corporation Law and applicable
Gaming Laws."
4. That the foregoing amendments have been duly adopted in accordance with the
provisions of Section 242 of the Delaware General Corporation Law, by approval
of the Board of Directors of the Corporation and by the affirmative vote of the
holders of at least a majority of the outstanding Common Stock of the
Corporation entitled to vote thereon with respect to all amendments, except the
amendment deleting ARTICLE XII relating to the required vote for certain
-----------
transactions, which was approved by the affirmative vote of the holders of at
least 70% of the outstanding Common Stock of the Corporation entitled to vote
thereon. There are no shares of the Corporation's Preferred Stock outstanding.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment of
Certificate of Incorporation to be duly executed by its authorized officer this
5/th/ day of June, 1998.
HOLLYWOOD PARK, INC.
By: /s/ G. Michael Finnigan
-------------------------
G. Michael Finnigan
Title: Executive Vice President; Treasurer
and Chief Financial Officer
-6-
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
_________________________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "HOLLYWOOD PARK, INC.", FILED IN THIS OFFICE ON THE TWENTY-
SEVENTH DAY OF OCTOBER, A.D. 1997, AT 9:01 O'CLOCK A.M.
/s/ Edward J. Freel
------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9562544
DATE: 02-08-99
HOLLYWOOD PARK, INC.
CERTIFICATE OF ELIMINATION
OF
THE $70 CONVERTIBLE PREFERRED STOCK
Pursuant to Section 151(g) of the
Delaware General Corporation Law
Hollywood Park, Inc., a corporation organized and existing under and
by virtue of the Laws of the State of Delaware (the "Corporation"), hereby
certifies as follows:
1. That the Corporation filed a Certificate of Powers, Designations,
Preferences and Rights (the "Certificate of Designation") of the $70 Convertible
Preferred Stock ("Convertible Preferred Stock") with the Delaware Secretary of
State on February 2, 1993.
2. That at a meeting held on September 16, 1997, the Board of
Directors of the Corporation duly adopted the following resolutions providing
for the elimination of the Corporation's series of Convertible Preferred Stock:
"NOW, THEREFORE, BE IT RESOLVED, that none of the authorized
shares of the Corporation's $70 Convertible Preferred Stock ("Convertible
Preferred Stock") are outstanding and no shares of Convertible Preferred
Stock will be issued subject to the Certificate of Powers, Designations,
Preferences and Rights providing for the creation thereof, which was filed
with the Delaware Secretary of State on February 2, 1993 (the "Certificate
of Designation");
RESOLVED FURTHER, that the officers of the Corporation, and any
of them, be, and they hereby are, authorized, empowered and directed for
and on behalf of the Corporation and in its name to prepare or cause to be
prepared, execute, acknowledge and file a certificate of elimination of the
series of Convertible Preferred Stock (the "Certificate of Elimination") in
accordance with Delaware law, indicating therein (i) that none of the
authorized shares of Convertible Preferred Stock remain outstanding, (ii)
that no shares of Convertible Preferred Stock will be issued subject to the
Certificate of Designation and (iii) that the filing the Certificate of
Elimination with the Delaware Secretary of State shall have the effect of
eliminating from the Corporation's Certificate of Incorporation, as
amended, all matters set forth in the Certificate of Designation with
respect to the series of Convertible Preferred Stock; and
RESOLVED FURTHER, that the officers of the Corporation, and any
of them, be, and they hereby are, authorized, empowered and directed for
and on behalf of the Corporation and in its name to do, or cause to be done
all such further acts or things and to execute and deliver, or cause to be
executed and delivered, all such further documents, instruments and
certificates, as such officers, or any of them, may in their discretion
deem necessary, advisable or appropriate in connection with the Certificate
of Elimination, the execution and delivery of such documents,
-2-
instruments and certificates and the taking of any such action conclusively
to evidence the due authorization thereof by the Corporation."
3. That no shares of Convertible Preferred Stock issued subject to
the Certificate of Designation remain outstanding and none will be issued
subject to the Certificate of Designation.
4. That this Certificate of Elimination shall become effective upon
filing with the Delaware Secretary of State and shall have the effect of
eliminating from the Corporation's Certificate of Incorporation, as amended, all
matters set forth in the Certificate of Designation with respect to the series
of Convertible Preferred Stock.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Elimination to be duly executed by its authorized officer this 24/th/ day of
October, 1997.
HOLLYWOOD PARK, INC.
By: /s/ G. Michael Finnigan
------------------------------------
G. Michael Finnigan,
President, Sports and Entertainment;
Executive Vice President; Treasurer;
and Chief Financial Officer
-3-
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
_________________________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF CHANGE OF
REGISTERED AGENT OF "HOLLYWOOD PARK, INC.", FILED IN THIS OFFICE ON THE TWENTY-
SEVENTH DAY OF OCTOBER, A.D. 1997, AT 9 O'CLOCK A.M.
/s/ Edward J. Freel
-----------------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9562546
DATE: 02-08-99
CERTIFICATE OF CHANGE
OF
LOCATION OF REGISTERED OFFICE
AND REGISTERED AGENT
OF
HOLLYWOOD PARK, INC.
--------------------
a Delaware corporation
Hollywood Park, Inc., a corporation organized and existing under and by
virtue of the Laws of the State of Delaware (the "Corporation"), hereby
certifies that the following is a true copy of resolutions duly adopted by the
Board of Directors of the Corporation at a meeting held on September 16, 1997:
"NOW, THEREFORE, BE IT RESOLVED, that the location of the Registered
Office of the Corporation in the State of Delaware be, and the same hereby
is, changed to 30 Old Rudnick Lane, in the City of Dover, County of Kent;
RESOLVED FURTHER, that the name of the Registered Agent of the
Corporation in the State of Delaware at such address be, and the same
hereby is, changed to CorpAmerica, Inc.; and
RESOLVED FURTHER, that the officers of the Corporation be, and each of
them hereby is, authorized, empowered and directed for and on behalf of the
Corporation and in its name to prepare or cause to be prepared, execute,
acknowledge and file a certificate of change of location of registered
office and registered agent in accordance with Delaware law."
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Change
of Location of Registered Office and Registered Agent to be duly executed by its
authorized officer this 24/th/ day of October, 1997.
HOLLYWOOD PARK, INC.
By: /s/ G. Michael Finnigan
-------------------------
G. Michael Finnigan
President, Sports and Entertainment;
Executive Vice President; Treasurer;
and Chief Financial Officer
-2-
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
_________________________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "HOLLYWOOD PARK, INC.", FILED IN THIS OFFICE ON THE TWENTY-NINTH DAY OF JULY,
A.D. 1994, AT 9 O'CLOCK A.M.
/s/ Edward J. Freel
----------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9562548
DATE: 02-08-99
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
HOLLYWOOD PARK, INC.
--------------------
a Delaware corporation
Hollywood Park, Inc., a corporation organized and existing under and by
virtue of the Laws of the State of Delaware (the "Corporation"), hereby
certifies as follows:
1. The Certificate of Incorporation of the Corporation is amended to
add a new ARTICLE XIV to read in its entirety as follows:
-----------
"ARTICLE XIV"
-------------
A. So long as the Corporation or any subsidiary thereof engages
in, or intends to engage in, the operation of licensed card clubs
regulated under the California Gaming Registration Act or any other
applicable federal, state or local statutes, ordinances, rules or
regulations, all securities of the Corporation shall be held subject
to the proviso that if continued Ownership or Control (as defined in
paragraph B) of the securities by any person or entity or any of its
Affiliates (a "Disqualified Person") would cause the Corporation or
any subsidiary thereof to lose or prevent the reinstatement of any
government-issued franchise or license necessary for the operation of
any such licensed card club, such securities Owned or Controlled by
such Disqualified Person or its Affiliates (the "Disqualified
Securities") shall be redeemable by the Corporation, out of funds
legally available therefor, by action of the Board of Directors, to
the extent necessary to prevent the loss or secure the reinstatement
of any government-issued franchise or license held by the Corporation
or any subsidiary thereof, which franchise or license is conditioned
upon some or all of the holders of the Corporation's securities
possessing prescribed qualifications. Any determination made by the
Board of Directors that a person or entity is a "Disqualified Person"
or an Affiliate of a Disqualified Person shall be final.
B. "Ownership or Control" or "Owned or Controlled" shall refer
to (i) ownership of record, (ii) beneficial ownership, or (iii) the
power to direct, by agreement, contract, agency or any other manner,
the voting or disposition of securities of the Corporation. Any
determination made by the Board of Directors regarding the foregoing
shall be final.
C. The terms "Affiliate" and "Associate" shall have the
respective meaning ascribed to such terms in rule 12b-2 promulgated
under the Securities Exchange Act of 1934 (the "Exchange Act") as in
effect on April 27, 1994 (the term "registrant" in said Rule 12b-2
meaning in this case the Corporation).
-2-
D. Commencing on the earlier of the date that (i) the
appropriate governmental authority serves written notice upon the
Corporation that a person or entity is or might be a Disqualified
Person or (ii) the Corporation serves written notice upon the record
holder of Disqualified Securities that it or any other person or
entity that Owns or Controls the Disqualified Securities is a
Disqualified Person or an Affiliate of a Disqualified Person, it shall
be unlawful for the record holder of the Disqualified Securities or
the Disqualified Person or Affiliate of such person (a) to receive
dividends or interest upon the record holder's securities in the
Corporation; (b) to exercise, directly or through any trustee or
nominee, any right conferred by such securities, including the right
to vote such shares; or (c) to receive any remuneration in any form
from the Corporation for services rendered or otherwise. Notices
shall be deemed given when delivered by personal service or telegram
or telecopy, or upon deposit with any reputable overnight courier or
in the United States mails, delivered or mailed, in the case of a
record holder of Disqualified Securities, to the record holder's
address shown on the Corporation's books and records. Any
Disqualified Holder and each Affiliate of such person shall indemnify
the Corporation and its subsidiaries for any and all direct or
indirect costs, including attorneys' fees, incurred by the Corporation
and its subsidiaries as a result of such Disqualified Holder's or
Affiliate of such person's continuing ownership or failure to divest
promptly of any Disqualified Securities. Notwithstanding the
foregoing, a Disqualified Holder or Affiliate of such person need not
dispose of its securities during the pendency of any appeal of the
determination of unsuitability or disqualification, provided that (a)
the Disqualified Holder and each Affiliate of such person indemnifies
the Corporation and its subsidiaries as provided above and (b) the
appropriate governmental authorities consent in writing prior to the
date set by the Corporation for redemption of such securities to such
non-disposal during the pendency of the appeal.
E. The per share redemption price (the "Redemption Price") of
any securities to be redeemed pursuant to this Article XIV shall be
the closing sales price on the New York Stock Exchange Composite Tape
on the date the notice of redemption is given by the Company; or if
such shares are not then listed for trading on the New York Stock
Exchange, then the closing sales price of such shares on any other
national securities exchange on which such shares are then listed; or
if such shares are not then listed on any national securities
exchange, then the closing sales price as quoted in the NASDAQ
National Market System; or if the shares are not then so quoted, then
the mean between the representative bid and ask prices as quoted by
NASDAQ or another generally recognized reporting system. The
redemption price may be paid in cash, by delivery of a promissory note
of the Corporation, or a combination of both, at the election of the
Corporation. Any such promissory note shall have a maturity of not
more than ten years from the date of issuance and shall bear interest
at the rate equal to the then-current coupon rate of a ten-year
Treasury note as such rate is published in the Wall Street Journal or
comparable publication.
-3-
F. A notice of redemption (the "Redemption Notice") shall be
given by personal delivery, telegram, telecopy, overnight courier or
first class mail, postage prepaid, not less than 10 days prior to the
date on which the Disqualified Securities are to be redeemed (the
"Redemption Date") to the record holder of any Disqualified
Securities, delivered to such record holder's address shown on the
Corporation's books and records. Each such notice of redemption shall
state (i) the Redemption Date; (ii) the number of shares of securities
to be redeemed; (iii) the Redemption Price, and the manner of payment
thereof; and (iv) the place where certificates for such shares are to
be surrendered for payment of the Redemption Price. From and after the
Redemption Date, the securities called for redemption shall no longer
be deemed to be outstanding and all rights of the holders thereof as
stockholders (other than the right to receive the Redemption Price) of
the Corporation shall cease. Upon surrender of the certificates for
any securities to be redeemed in accordance with the requirements of
the notice of redemption (properly endorsed or assigned for transfer
if the Board of Directors shall so require and the notice shall so
state), such securities shall be redeemed by the Corporation at the
Redemption Price.
G. All Securities of the Corporation and any Subsidiary shall
also be held subject to the condition that any transfer thereof may be
subject to prior approval by Gaming Authorities.
H. The Corporation shall cause to be placed in every indenture
or other operative instrument of Publicly-traded Securities (other
than capital stock) of the Corporation entered into from the date of
the filing of this Certificate of Incorporation a provision requiring
that any holder of such indebtedness who is found to be a Disqualified
Person (or Affiliate of such person) shall have his interest redeemed
or shall dispose of his interest in the Corporation in the manner set
forth in the indenture or other operative document.
I. Nothing contained in this Article XIV shall be construed (1)
to relieve any Disqualified Person (or Affiliate of such person) from
any fiduciary obligation imposed by law, (2) to prohibit or affect any
contractual arrangement which the Corporation may make from time to
time with any holder of Securities to purchase all or any part of
shares of capital stock or other Securities held by them, or (3) to be
in derogation of any action, past or future, which has been or may be
taken by the Board of Directors or any holder of Securities with
respect to the subject matter of this Article XIV.
J. The Corporation will be entitled to injunctive relief in any
court of competent jurisdiction to enforce the provisions of this
Article XIV and each holder of the Publicly-traded Securities of the
Corporation will be deemed to have acknowledged by acquiring or
retaining Securities of the Corporation that failure to comply with
this Article XIV will expose the Corporation to irreparable injury for
which there is no adequate remedy at
-4-
law and that the Corporation is entitled to injunctive relief to
enforce the provisions of this Article XIV."
2. That the foregoing amendment to the Certificate of Incorporation
has been duly adopted in accordance with the provisions of Section 242 of
the Delaware General Corporation Law (i) by resolution of the Board of
Directors of the Corporation and (ii) by the affirmative vote of the
holders of at least a majority of the outstanding shares of Common Stock
and at least two-thirds of the outstanding shares of $70 Convertible
Preferred Stock of the Corporation entitled to vote thereon.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to the Certificate of Incorporation to be signed and attested by its
duly authorized officers this 22nd day of July, 1994.
HOLLYWOOD PARK, INC.
By: /s/ G. Michael Finnigan
---------------------------
G. Michael Finnigan
Executive Vice President
Attest:
/s/ Donald M. Robbins
- ----------------------------
Donald M. Robbins
Assistant Secretary
-5-
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
_________________________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "HOLLYWOOD PARK, INC.", FILED IN THIS OFFICE THE FIRST DAY OF JUNE, A.D.
1993, AT 9 O'CLOCK A.M.
/s/ Edward J. Freel
-----------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9562550
DATE: 02-08-99
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
HOLLYWOOD PARK, INC.
---------------------
a Delaware corporation
Hollywood Park, Inc., a corporation organized and existing under and by
virtue of the Laws of the State of Delaware (the "Company"), hereby certifies as
follows:
1. That the first sentence of ARTICLE IV of the Certificate of
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Incorporation of the Company is amended to read in its entirety as follows:
"The amount of the total authorized capital stock of the
corporation is 40,250,000 shares which is divided into two classes as
follows:
250,000 shares of Preferred Stock having a par value of $1.00 per
share; and
40,000,000 shares of Common Stock having a par value of $0.10 per
share."
2. That the foregoing amendment to the Certificate of Incorporation
has been duly adopted in accordance with the provisions of Section 242 of
the Delaware General Corporation Law, by resolution of the Board of
Directors of the Company and by the affirmative vote of the holders of at
least a majority of the outstanding Common Stock of the company entitled to
vote thereon. There are no shares of the Company's Preferred Stock
outstanding.
IN WITNESS WHEREOF, the Company has caused this Certificate of Amendment to
the Certificate of Incorporation to be signed and attested by its duly
authorized officers this 28th day of May, 1993.
----
HOLLYWOOD PARK, INC.
By: /s/ G. Michael Finnigan
--------------------------
G. Michael Finnigan
Executive Vice President
Attest:
/s/ Donald M. Robbins
-----------------------
Donald M. Robbins
Assistant Secretary
-3-
STATE OF DELAWARE
Office of the Secretary of State
_________________________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AGREEMENT
OF MERGER, WHICH MERGES:
"HOLLYWOOD PARK, INC.", A DELAWARE CORPORATION,
WITH AND INTO "HOLLYWOOD PARK REALTY ENTERPRISES, INC." UNDER THE NAME OF
"HOLLYWOOD PARK REALTY ENTERPRISES, INC.", A CORPORATION ORGANIZED AND EXISTING
UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE
THE FIFTEENTH DAY OF APRIL, A.D. 1982, AT 10 O'CLOCK A.M.
/s/ Edward J. Freel
------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9562562
DATE: 02-08-99
AGREEMENT OF MERGER
-------------------
AGREEMENT OF MERGER dated of November 9, 1981, by and between HOLLYWOOD
PARK, INC. ("HPI") and HOLLYWOOD PARK REALTY ENTERPRISES, INC. ("Realty" or the
"Surviving Corporation") (said two corporations being herein sometimes
collectively called the "Constituent Corporations").
RECITALS
--------
A. HPI is a corporation duly organized and existing under the laws of the
State of Delaware, its principal office in the State of California being located
in Los Angeles County; and
B. Realty is a wholly-owned subsidiary of HPI and is a corporation duly
organized and existing under the laws of the State of Delaware, having been
incorporated on October 26, 1981 by a Certificate of Incorporation filed with
the Secretary of State on that date, its registered office in the State of
Delaware being located in New Castle County; and
C. HPI and Realty have entered into an agreement styled "Agreement and
Plan of Reorganization" (the "Plan") with Hollywood Park Operating Company
("Operating Company"), a wholly-owned subsidiary of HPI and a corporation duly
organized and existing under the laws of the State of Delaware, having been
incorporated on October 26, 1981, by a Certificate of Incorporation filed with
the Secretary of State on that date, its registered office in the State of
Delaware being located in New Castle County; and
D. HPI, Realty and Operating Company have mutually promised to and desire
to execute all documents necessary to conform with the terms and conditions of
the Plan; and
E. The respective boards of directors of HPI and Realty have determined
that it is advisable that HPI be merged into Realty on the terms and conditions
hereinafter set forth; and
F. HP1 has an authorized capitalization consisting of 1,000,000 shares of
Preferred Stock, $1.00 per value, of which no shares are outstanding on the date
hereof, and 9,000,000 shares of Common Stock $0.80 par value ("HPI Common
Stock"), of which 2,456,809 shares are outstanding on the date hereof; and
G. Realty has an authorized capitalization consisting of 250,000 shares of
Preferred Stock, $1.00 par value, of which no shares are outstanding on the date
hereof, and 4,500,000 shares of Common Stock $0.10 par value ("Realty Common
Stock"), of which 100 shares are outstanding on the date hereof; and
NOW, THEREFORE, HPI and Realty do hereby agree in accordance with the
provisions of the General Corporation Law of the State of Delaware that HPI
shall be, at the effective time of the merger, merged into Realty, which shall
be the surviving corporation, and that the terms and conditions of such merger
and the mode of carrying it into effect shall be as follows:
AGREEMENT
---------
In order to consumate this Agreement and to effect such merger, the parties
hereto agree as follows:
ARTICLE I
---------
Each share of Realty Common Stock immediately outstanding prior to the
Effective Time of the Merger shall, at the Effective Time of the Merger cease to
exist and be cancelled and returned to the authorized and unissued capital of
Realty.
ARTICLE II
----------
At the Effective Time of the merger, HPI shall be merged into Realty, the
separate existence of HPI shall cease and Realty shall continue in existence,
and, without other transfer, succeed to and possess all of the properties,
rights, privileges, immunities, powers, and purposes, and shall be subject to
all the obligations, restrictions, disabilities and duties of each of the
Constituent Corporations, all without further act or deed.
ARTICLE III
-----------
The Certificate of Incorporation of the Surviving Corporation, as amended
and in effect at the effective time of the Merger, shall continue in full force
and effect until altered, amended, or repealed as provided therein or as
provided by law.
ARTICLE IV
----------
The by-laws of the Surviving Corporation, as amended and in effect at the
Effective Time of the merger, shall continue in full force and effect until
altered, amended or repealed as provided therein or as provided by law.
ARTICLE V
---------
The directors of Realty holding office immediately prior to the Effective
Time of the merger shall become the directors of the Surviving Corporation and
shall continue until removed as provided by law or until the election of their
respective successors. The officers of the Realty at the effective time of the
merger shall continue to hold office until removed as provided by law or until
the election of their respective successors.
ARTICLE VI
----------
Upon the Effective Time of the merger each share of HPI Common Stock
outstanding immediately prior to the merger and all right in respect thereof,
shall be converted into and exchanged for one share of Realty Common Stock.
Each holder of a certificate or certificates theretofore representing a share or
shares of HPI Common Stock shall, upon presentation of such certificate or
certificates for surrender to the Surviving Corporation or its agents, be
entitled to receive in exchange therefore a certificate or certificates
representing the whole shares of fully paid and non-assessable Realty Common
Stock to which such holder shall be entitled upon the aforesaid basis of
exchange. Each share of HPI Common Stock outstanding immediately prior to the
merger shall, upon the Effective Time of the merger, forthwith cease to exist
and be cancelled. Until any such
-2-
outstanding certificates of HPI shall be so surrendered, no dividend payable to
the holder of record of Common Stock of Realty as of any date subsequent to the
Effective Time of the Merger shall be paid to the holder of an outstanding
certificate of HPI, but upon surrender of such certificate there shall be paid
to the record holder of the certificate evidencing ownership of Realty Common
Stock issued in exchange therefore the amount of dividends, if any, which
theretofore became payable with respect to the shares of Realty represented by
the certificates without any interest being due or paid with respect to such
unpaid dividends.
ARTICLE VII
-----------
The merger shall become effective upon the filing in the office of the
Secretary of State of the State of Delaware of an executed counterpart of this
Agreement of Merger and certificates of the Constituent Corporations as provided
by the laws of Delaware ("Effective Time"). The Constituent Corporations shall
do all other acts and things as shall be necessary or desirable in order to
effectuate the merger.
ARTICLE VIII
------------
To the extent permitted by applicable law, HPI and Realty, by mutual
consent of their respective duly authorized officers, may amend, modify and
supplement this Agreement of Merger in such manner as may be agreed upon by them
in writing at any time before or after approval or adoption thereof by the
shareholders of HPI or of Realty. However, no condition shall be waived which,
in the judgment of the respective Boards of Directors, would be materially
adverse to their companies or their shareholders if waived.
ARTICLE IX
----------
This Agreement of Merger may be abandoned at any time before or after
approval or adoption thereof by the shareholders of HPI or Realty
notwithstanding favorable action on the merger by the shareholders of either or
both Constituent Corporations but not later than the Effective Time of the
merger, by the mutual consent of the boards of directors of UPI or Realty.
In the event of abandonment by the boards of directors of HPI or Realty as
provided above, written notice shall forthwith be given to the other party.
ARTICLE X
---------
This Agreement of Merger may be executed in counterparts, each of which
when so executed shall be deemed to be an original, and such counterparts shall
together constitute but one and the same instrument.
-3-
IN WITNESS WHEREOF, HPI and REALTY, pursuant to the approval and authority
duly given by resolutions adopted by their respective boards of directors, have
each caused this Agreement of Merger to be executed by its President or a vie*
President and attested by its Secretary or an Assistant Secretary and its
corporate seal to be affixed as of the date and year first above written.
HOLLYWOOD PARK, INC.
By: /s/ Vernon O. Underwood
---------------------------------------
President
ATTEST:
/s/ James E. Kenney
---------------------
Secretary
HOLLYWOOD PARK REALTY ENTERPRISES, INC.
By: /s/ John V. Newman
---------------------------------------
President
ATTEST:
By: __________________
Secretary
-4-
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On this 12 day of April in the year 1982, before me, Hugh G. Gibson Notary
-- ----- --------------
Public of said State, duly commissioned and sworn, personally appeared Vernon O.
Underwood and James E. Kenney, known to me to be the Chairman and the Secretary,
respectively, of HOLLYWOOD PARK, INC., a Delaware corporation, the corporation
that executed the within Instrument, known to me to be the persons who executed
the within Instrument on behalf of the corporation therein named and
acknowledged to me that such corporation executed the same pursuant to its by-
laws or a resolution of its board of directors.
IN WITNESS WHEREOF. I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Hugh G. Gibson
---------------------------------------
Notary Public in and for said State
[SEAL]
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On this 12 day of April, 1982 the year 1982, before me, Hugh G. Gibson a
-- ----------- --------------
Notary Public of said State, duly commissioned and sworn, personally appeared
John V. Newman and Robert A. Hamilton, known to me to be the President and the
Secretary, respectively, of HOLLYWOOD PARK REALTY ENTERPRISES, INC., a Delaware
corporation, the corporation that executed the within Instrument, known to me to
be the persons who executed the within Instrument on behalf of the corporation
therein named and acknowledged to me that such corporation executed the same
pursuant to its by-laws or a resolution of its board of directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Hugh G. Gibson
----------------------------------------
Notary Public in and for said State
[SEAL]
-5-
CERTIFICATES
------------
The undersigned, Secretary of HOLLYWOOD PARK, INC., a Delaware corporation,
hereby certifies, Pursuant to Sections 251-252 of the General Corporation Law of
the state of Delaware that the total number of shares of common stock (the only
class of capital stock outstanding) of HOLLYWOOD PARK, INC, outstanding on the
record date and entitled to vote an the Merger was 2,456,805; that at a properly
noticed meeting of shareholders on April 12, 1982 the principal terms of the
attached Agreement of Merger were duly approved by a vote of 2,026,772 shares
---------
for the Agreement of Merger, constituting a 82.49% of the outstanding shares of
------
HOLLYWOOD PARK, INC.; and that the number of shares voted in favor of the
Agreement of Merger equals or exceeds the number of shares required to approve
the Agreement of Merger.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on the
12/th/ day of April, 1982.
- ------ -----
The undersigned, Assistant Secretary of HOLLYWOOD PARK REALTY ENTERPRISES,
INC., a Delaware corporation, hereby certifies, pursuant to Section 251 of the
General Corporation Law of the State of Delaware that the foregoing Agreement of
Merger to which this Certificate is attached was duly approved and adopted on
November 9, 1981 by written consent of the holder of all of the outstanding
- ----------------
shares of capital stock of HOLLYWOOD PARK REALTY ENTERPRISES, INC., which would
have been entitled to vote on such matter had a meeting been called for such
purpose, pursuant to Section 228 of the General Corporation Law of the State of
Delaware which authorizes such action to be so taken.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on the
12/th/ day of April, 1982.
- ------ -----
/s/ Gay Firestone Wray
------------------------
Secretary
-6-
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On this 12 day of April 1982 in the year 1982, before me, Hugh G. Gibson a
-- ---------- --------------
Notary Public of said State, duly commissioned and sworn, personally appeared
James E. Kenney, known to me to be the Secretary of HOLLYWOOD PARK, INC., a
Delaware corporation, the corporation that executed the within Instrument, known
to me to be the person who executed the within Instrument on behalf of the
corporation therein named and acknowledged to me that such corporation executed
the same pursuant to its by-laws or a resolution of its board of directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Hugh G. Gibson
----------------------------------------
Notary Public in and for said State
[SEAL]
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On this 12 day of April in the year 1982, before me, Hugh G. Gibson a
-- ----- --------------
Notary Public of said State, duly commissioned and sworn, personally appeared
Gay Firestone Wray, known to me to be the Assistant Secretary of HOLLYWOOD PARK
REALTY ENTERPRISES, INC., a Delaware corporation, the corporation that executed
the within Instrument, known to me to be the person who executed the within
Instrument on behalf of the corporation therein named and acknowledged to me
that such corporation executed the same pursuant to its by-laws or a resolution
of its board of directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Hugh G. Gibson
----------------------------------------
Notary Public in and for said State
[SEAL]
-7-
RE-EXECUTION
------------
The foregoing Agreement of Merger, having been duly executed and delivered
on behalf of each of the Constituent Corporations, HOLLYWOOD PARK, INC. and
HOLLYWOOD PARK REALTY ENTERPRISES, INC., duly adopted by their respective
stockholders, the fact of such adopting having been certified thereon by the
Secretary of each of such corporations, all in accordance with Section 251 of
the General Corporation Law of the State of Delaware, is hereby, in addition,
executed by the President or a Vice President and attested by the Secretary or
an Assistant Secretary of each of the Constituent corporations on behalf of such
corporations, respectively, on April 12, 1982.
HOLLYWOOD PARK, INC.
By: /s/ Vernon O. Underwood
-----------------------------------------
Vernon O. Underwood
Attest:
/s/ James E. Kenney
-------------------------
James E. Kenney
HOLLYWOOD PARK REALTY ENTERPRISES, INC.
By: /s/ Hal W. Brown, Jr.
-----------------------------------------
Hal W. Brown, Jr.
Attest:
/s/ Gay Firestone Wray
-------------------------
Gay Firestone Wray
-8-
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On this 12 day of April in the year 1982, before me, Hugh G. Gibson a
-- ----- --------------
Notary Public of said State, duly commissioned and sworn, personally appeared
Vernon O. Underwood and James E. Kenney, known to me to be the Chairman and the
Secretary, respectively, of HOLLYWOOD PARK, INC., a Delaware corporation, the
corporation that executed the within Instrument, known to me to be the persons
who executed the within Instrument on behalf of the corporation therein named
and acknowledged to me that such corporation executed the same pursuant to its
by-laws or a resolution of its board of directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Hugh G. Gibson
----------------------------------------
Notary Public in and for said State
[SEAL]
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On this 12 day of April in the year 1982, before me, Hugh G. Gibson a
-- ----- --------------
Notary Public of said State, duly commissioned and sworn, personally appeared
Hal W. Brown, Jr. and Gay Firestone Wray, known to me to be the Chairman and the
Assistant Secretary, respectively, of HOLLYWOOD PARK REALTY ENTERPRISES, INC., a
Delaware corporation, the corporation that executed the within Instrument, known
to me to be the persons who executed the within Instrument on behalf of the
corporation therein named and acknowledged to me that such corporation executed
the same pursuant to its by-laws or a resolution of its board of directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Hugh G. Gibson
----------------------------------------
Notary Public in and for said State
[SEAL]
-9-
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
_________________________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "HOLLYWOOD PARK REALTY ENTERPRISES, INC.", FILED IN THIS OFFICE
ON THE TWENTY-SIXTH DAY OF OCTOBER, A.D. 1981, AT 10 O'CLOCK A.M.
/s/ Edward J. Freel
----------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9562566
DATE: 02-08-99
CERTIFICATE OF INCORPORATION
OF
HOLLYWOOD PARK REALTY ENTERPRISES, INC.
---------------------------------------
ARTICLE I
---------
The name of the Corporation is: Hollywood Park Realty Enterprises, Inc.
ARTICLE II
----------
The address of its registered office in the State of Delaware is 100 West
Tenth Street, Wilmington, County of New Castle. The name of its registered agent
is The Corporation Trust Company.
ARTICLE III
-----------
The nature of the business to be conducted or promoted is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
ARTICLE IV
----------
The amount of the total authorized capital stock of the corporation is
10,000 shares which are divided into two classes as follows:
2,500 shares of Preferred Stock having a par value of $1.00 per share;
and
7,500 shares of Common Stock having a par value of $0.10 per share.
The designations, voting powers, preferences and relative participating,
optional or other special rights, and qualifications, limitations or
restrictions of the above classes of stock are as follows:
A. Preferred Stock
---------------
The Board of Directors is expressly authorized, from time to time, (1)
to fix the number of shares of one or more series of Preferred Stock; (2)
to determine the designation of any such series; (3) to determine or alter,
without limitation or restriction, the rights, preferences, privileges and
restrictions granted to or imposed upon any wholly unissued series of
Preferred Stock; and (4) within the limits or restrictions stated in any
resolution or resolutions of the Board of Directors originally fixing the
number of shares constituting any series, to increase or decrease (but not
below the number of shares then outstanding) the number of shares of any
such series subsequent to the issue of shares of that series.
-2-
B. Common Stock.
------------
(i) Subject to the preferential rights of the Preferred Stock,
the holders of the Common Stock shall be entitled to receive, to the
extent permitted by law, such dividends as may be declared from time
to time by the Board of Directors.
(ii) In the event of the voluntary or involuntary liquidation,
dissolution, distribution of assets or winding up of the corporation,
after distribution in full of the preferential amount to be
distributed to the holders of shares of the Preferred Stock, holders
of the Common Stock shall be entitled to receive all the remaining
assets of the corporation of whatever kind available for distribution
to stockholders, ratably in proportion to the number of shares of
Common Stock held by them respectively. A consolidation, merger or
reorganization of the corporation with any other corporation or
corporations, or a sale of all or substantially all of the assets of
the corporation, shall not be considered a dissolution, liquidation or
winding up of the corporation within the meaning of these provisions.
(iii) Except as may be otherwise required by law, each share of
Common Stock shall entitle the holder to one vote in respect of each
matter voted by the stockholders.
ARTICLE V
---------
Any and all right, title, interest and claim in or to any dividends
declared by the corporation, whether in cash, stock, or otherwise, which are
unclaimed by the stockholder entitled thereto for a period of six years after
the close of business on the payment date, shall be and is deemed to be
extinguished and abandoned; and such unclaimed dividends in the possession of
the corporation, its transfer agents or other agents or depositories shall at
such time become the absolute property of the corporation, free and clear of any
and all claims of any persons whatsoever.
ARTICLE VI
----------
In furtherance and not in limitation of the power conferred by statute, the
Board of Directors is expressly authorized to make, alter, amend or repeal the
by-laws of the corporation.
ARTICLE VII
-----------
Whenever a compromise or arrangement is proposed between this corporation
and its creditors or any class of them and/or between this corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation under
the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of
the creditors or
-3-
class of creditors, and/or of the stockholders or class of stockholders of the
corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this corporation, as the case
may be, and also on this corporation.
ARTICLE VIII
------------
The corporation shall indemnify its officers and directors to the full
extent permitted by the Delaware General Corporation Law.
ARTICLE IX
----------
Elections of directors need not be by written ballot unless the by-laws of
the corporation so provide.
ARTICLE X
---------
The corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
ARTICLE XI
----------
The name and mailing address of the incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
Candace K. Fullmer Suite 4100, 55 E. Monroe St.
Chicago, Illinois 60603
ARTICLE XII
-----------
The affirmative vote or written consent of the holders of 70% of all
outstanding shares of all classes of stock of the Corporation entitled to vote
thereon, considered for the purposes of this Article TWELFTH as one class, shall
be required:
(a) for the adoption of any agreement for the merger of the
Corporation with or into any other corporation or for the consolidation of
the Corporation with any other corporation;
(b) to authorize any sale, lease, transfer or exchange of all or
substantially all of the assets of the Corporation to any other person (as
hereinafter defined);
-4-
(c) to authorize the dissolution of the Corporation;
(d) to alter, amend or repeal this Article TWELFTH.
For the purposes of this Article TWELFTH, the term person shall mean any
corporation, partnership, association, or any other business entity, trust,
estate or individual.
This Article TWELFTH shall not apply to a merger if no vote of stockholders
of the Corporation is necessary under Delaware law to authorize it.
IN WITNESS WHEREOF, I have signed this Certificate of Incorporation this
23rd day of October, 1981.
- ----
/s/ Candace K. Fullmer
------------------------
Candace K. Fullmer
-5-